Assistant U. S. Attorney asset forfeiture chief confirms negligible number of appointments of counsel under CAFRA’s right to counsel provision.
Upon request of the forfeiture victim, the federal Civil Asset Forfeiture Act of 2000 (CAFRA) requires courts to appoint counsel to represent owners of seized homes who cannot afford a lawyer. Yet, over ten years after FEAR won the battle for homeowners' right to counsel, a survey of asset forfeiture coordinators in each of the nation's 94 judicial districts resulted in only seven districts reporting that any appointments had ever been made under this provision, with only four of those reporting more than one appointment under CAFRA's ten-year-old provision.
by Judy Osburn
In his declaration filed January 10, 2011, Assistant United States Attorney Steven R. Welk described his first actions after becoming aware in December, 2010 of the first ever appointment of counsel in the Central District of California (Los Angeles) pursuant to the Civil Asset Forfeiture Reform Act of 2000 (CAFRA).  As Chief of his district’s Asset Forfeiture Section, “with oversight responsibility over all forfeiture matters filed in the district,” – which includes the counties of Los Angeles, Orange, Ventura, Santa Barbara and San Luis Obispo – AUSA Welk sent an email to his fellow asset forfeiture coordinators in each of the U.S. Attorneys Offices throughout nation “inquiring about their experiences, if any, with appointments of counsel made pursuant to 18 U.S.C. § 983(b)(2),” CAFRA’s right to counsel provision for claimants whose home has been seized.1 

CAFRA’s right to counsel provision dysfunctional by design

Upon learning of the first appointment and claim for attorney fees in his large busy judicial district, AUSA Welk also contacted Mark Freedman of the Legal Services Corporation, which Congress charged with providing counsel for asset forfeiture claimants.  “Mr. Freedman was very helpful, and candidly admitted that while the LSC had developed a system for handling such appointments, the statutory appointment language was not reasonably reconcilable with the LSC’s statutory mission.”  According to AUSA Welk’s sworn declaration, CAFRA’s right to counsel provision was drafted without consulting LSC, which only became aware of the provision after it was passed.

Additionally, AUSA Stefan Cassella, who “was personally involved both in drafting the Department’s proposals for CAFRA and the negotiations and Congressional hearings that led to the enactment of the Act” advised Welk that no reference to the LSC was included until “very late in the drafting process.”  In a March 2008 email obtained by Welk, General Counsel for LSC Victor Fortuno stated  that “LSC’s involvement [in the § 983(b)(2) appointment process] came about because of some confusion by Congress about how LSC works ... . LSC does not provide representation itself, but rather provides grants to local civil legal aid organizations.”

Those of us who worked with the late Representative Henry Hyde in passing the Civil Asset Forfeiture Reform Act of 2000 remember well the disappointing compromises pressured by Department of Justice lawyers who watered down our nation’s first and only federal forfeiture reform during those final hours before its passage.  This particular Catch-22, created by assigning the responsibility of providing counsel for representation of indigent claimants to a grant funding organization that is incapable of providing representation to individuals, has resulted in the provision having been “applied only a relatively few times across the country.” 

Therefore, in United States v. $19,985 2 AUSA Welk now argues in the government's opposition to the CAFRA attorney's request for interim fees, that after “a thorough investigation, government counsel has found that no court has ever entered an interim fee order in connection with a § 983(b)(2) appointment,” and therefore the court should find no basis for making “such an extraordinary deviation” from the small handful of cases in which CAFRA’s right to counsel provision has been implemented at all. 

LSC received no direction from Congress as to how the provision should be put into effect. However, because the issue has arisen in various districts since CAFRA’s enactment, the LSC had developed the following procedure with respect to § 983(b)(2) appointments: if an attorney contacts the LSC and indicates a desire to be appointed under the statute, Mr. Freedman issues what is essentially a form letter (like the one issued in this case) advising the court that it consents to the requested appointment. From that point forward, the LSC has no further involvement.

Congress left counsel appointed under CAFRA to seek an order from the court approving fees and costs, which the AUSA submits to the Department of Treasury for payment – but not before vigorously fighting against any motion for such an order.  In United States v. $19,985 Welk argued on behalf of the government that “the LSC has no authority to bind the federal government or establish federal policy with respect to waivers of sovereign immunity” from its statutory liability for paying attorneys to represent qualified claimants in forfeiture proceedings. 

Thus, for over a decade claimants’ rights to counsel have been completely thwarted in 87 of the 94 federal judicial districts, with four of the remaining seven districts having made only one appointment of counsel to represent forfeiture claimants – a negligible number out of the tens of thousands of civil forfeiture cases prosecuted by the United States since the enactment of CAFRA ten years ago.

Defense counsel in United States v. $19,985 Eric Honig commented:
I am increasingly finding that the appointed representation provision in CAFRA will be difficult to enforce, unless district judges try to fashion workable remedies.  Judge George H. King in the $19,985 case, in response to an earlier motion in which I requested permission to submit interim invoices for payment, granted that request but denied payment at the time, and directed me to contact the CJA [Criminal Justice Act] coordinator (for appointments under 18 USC 3006A) for the Central District.  Between that office, the government and me, we determined that payment does not come from the CJA, but from DOJ/Treasury.  However, when I submitted invoices, the government opposed interim payment and asked that the Court withhold both payment and a determination of whether the CJA $9,700 maximum for felony cases should be applied or waived.  My argument was that the CJA maximum was inapplicable to CAFRA section 983 appointments, and only the CJA $125/hour rate applied. Ultimately, the Court has deferred judgment until after a replacement attorney fee appointment issue was resolved. We are waiting for the Court to rule.
 
The government has thus taken a position that will definitely discourage attorneys from accepting appointments under section 983(b)(2), i.e., that the CJA $9,700 maximum applies. My argument is that the CJA maximum should never apply to the defense a civil forfeiture cases, which are completely different to criminal cases.  Civil forfeiture litigation involves extensive discovery and law and motion practice, which usually takes 1-2 years to complete, at least in the Central District of California.  As for the interim payment issue, although some attorneys could wait until the end of the case to be paid, final compensation could be minimal if the Court allows the government to nickel-and-dime counsel when they submit their invoices. If the government must pay invoices during the case, at least counsel will get an idea of what kind of work the Court will allow (i.e., telephone conferences with other counsel, continuing legal research, etc.).

Meanwhile, the government is opposing Mr. Honig's appointment in another case, in which the claimant had already been represented in a related criminal case by the Federal Public Defenders Office and was therefore eligible for appointed counsel pursuant to § 983(b)(1). The government opposed appointment of private counsel, and the Court has tentatively ruled that the Federal Public Defender must also spend its over-burdened resources in unfamiliar civil forfeiture litigation – an complex area of law involving unique proceedings and strict rules for which Public Defenders have absolutely no experience.

While Federal Public Defenders lack either experience or training in forfeiture proceedings, during Fiscal Year 2010 alone the federal Asset Forfeiture Fund paid the Department of Justice $5.4 million for costs of prosecuting forfeiture cases, plus over another $1 million in forfeiture training and printing costs.3  Expert government forfeiture attorneys are quite used to depriving people of their property without any contest from experienced defense counsel – often by default early in the proceedings because claimants and lawyers taking on their first forfeiture case do not understand obscure but strictly enforced rules.

In 1993, the Supreme Court held in Gideon V. Wainwright that under the 6th Amendment right to counsel criminal defendants who could not afford an attorney were entitled to appointment of counsel at the government’s expense:
“The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman…lacks both the skill and knowledge to adequately prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.”4

While the Supreme Court has not extended the 6th amendment to persons punished with a civil forfeiture, surely these wise words apply equally to forfeiture, where the government spends “vast sums of money to establish machinery”5 to deprive people of their property. Without attorneys, forfeiture victims are helpless to defend themselves. Judges don’t always know they can appoint counsel, and even if they did, there is a shortage of experienced forfeiture counsel willing to accept the court appointments. And the government's profit motivated position is to keep it that way.
  End notes:
  1. This survey included only 18 U.S.C. § 983(b)(2), which requires courts to appoint counsel to indigent owners of seized homes. CAFRA's other right to counsel provision merely allows courts to appoint counsel in other types of civil forfeitures in which the claimant is represented by counsel in related criminal proceedings.  While we don't know the number of federal forfeiture cases filed against primary residences, nor even the number of cases filed against real property in general, according to Department of Justice reports to Congress, the DOJ has obtained thousands of forfeiture judgments against real estate during the ten years since the enactment of CAFRA. During Fiscal Year 2010 the DOJ obtained 377 forfeiture judgments against real property resulting in $76.6 million deposited into the Asset Forfeiture Fund according to the DOJ's Assets Forfeiture Fund and Seized Asset Deposit Fund Method of Disposition of Forfeited Property - Fiscal Year 2010; FY 2009 -- the government obtained433 forfeiture judgments against real estate resulting in $91.5 million deposited into the Asset Forfeiture Fund; FY 2008 -- 325 forfeiture judgments against real estate resulting in $63.6 million deposited into the Asset Forfeiture Fund; FY 2007 -- 327 forfeiture judgments against real estate resulting in $78.2 million deposited into the Asset Forfeiture Fund; FY 2006 -- 382 forfeiture judgments against real estate resulting in $82 million deposited into the Asset Forfeiture Fund; FY 2005 -- 416 forfeiture judgments against real estate resulting in $65.3 million from real estate forfeitures deposited into the Asset Forfeiture Fund; FY 2004 --  394 judgments against real estate resulting in $66.8 million deposited; into the Asset Forfeiture Fund; FY 2003 -- 358 judgments against real estate resulting in $56.2 million deposited into the Asset Forfeiture Fund; FY 2002 -- 330 judgments against real estate resulting in $47.8 deposited into the Asset Forfeiture Fund; 2001 -- 364 judgments against real estate resulting in $48.9 million deposited into the Asset Forfeiture Fund. None of the the DOJ's Reports to Congress lists the total number of forfeiture actions against real estate or the number of forfeiture actions that did not result in a forfeiture judgment, nor is there any way of calculating what percentage of real property forfeiture judgments were against primary residences of claimants.
  2. United States v. $19,985, Case 2:07-cv-03622, Central District of California.
  3. ASSETS FORFEITURE FUND AND SEIZED ASSET DEPOSIT FUND ANNUAL FINANCIAL STATEMENTS FISCAL YEAR 2010, U.S. Department of Justice Office of the Inspector General Audit Division Audit Report 11-12, January 2011, at page 56.
  4. Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963).
  5. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).